Law before equality: Non-UK residents may face ‘discriminatory’ cuts to legal aid

The UK government’s attempt to make residence tests a requirement for those seeking legal aid in Britain has been mitigated by the high court on grounds the proposed policy shift was both illegal and discriminatory.

In a resounding judgement, three British judges unanimously
declared the draft legislation unfit for parliamentary enactment.
They also upheld an objection that discrimination against
non-residents purely for the purpose of sparing state resources
was not legitimate logic for introducing this policy.

If enshrined in law, these regulations would have prevented
people who were unable to prove they’d been resident in Britain
for a year from accessing the state’s legal aid programme.

Proposed by Britain’s Secretary of State for Justice, Chris
Grayling, the regulations were set to be implemented in August
2014. The cases’ outcome marks a considerable setback for
Grayling, who had begun to introduce widespread reform while the
legislation remained in draft format.

The justice secretary’s proposed policy shift would have excluded
many individuals with “meritorious cases” from securing
vital legal assistance under UK law, according to the Public Law Project (PLP) - a British legal charity
that aims to provide those on low incomes with access to
“public law remedies”.

On grounds the proposed regulations were being pursued by
Grayling unlawfully, the charity launched a judicial review
challenge. John Halford, a solicitor from Bindman's law firm,
represented the PLP throughout the course of the proceedings.

As was reported in the Guardian, Lord Justice Moses countered the
Ministry of Justice’s claim at the close of the proceedings that
LASPO – the act under which the proposed policy change would have
been implemented – would channel legal aid to the “most
serious cases” that have “sufficient priority to justify
the use of public funds”.

"No one can pretend that removing legal aid from
non-residents is a means of targeting legal aid at those most in
need", the judge asserted.

Moses also rejected Grayling's theory that the reforms would
garner public confidence when he stated: "In the context of a
discriminatory provision relating to legal assistance, invoking
public confidence amounts to little more than reliance on public
prejudice."

In a recently published briefing paper concerning the government’s
proposed amendment of the LASPO Act, UK human rights group
Liberty urged the UK Parliament to reject this
“discriminatory” policy.

Throughout the document, the human rights organization cited
multiple negative implications of the proposed legislation. Of
particular note are the legislation’s introduction of
“discriminatory tests” that target
“foreigners”, its “wholly unjustified” nature,
its negative impact on “vulnerable children” and its
contravention of the “UK’s obligations under the UN
Convention on the Rights of the Child”.

The briefing paper also argued that this proposed legislation
would deprive the “mentally and physically
incapacitated” of legal assistance in cases “concerning
their welfare” and make it virtually impossible for many
abuse and crime victims to seek justice and accountability.

The paper was endorsed by multiple UK civil liberties and human
rights organizations including Redress, the Prisoners Advice
Service, the AIRE Centre, Reprieve and the PLP.

It concluded by emphasizing the enactment of Grayling’s
legislation would create a “mockery of a fundamental British
value: equality before law.”

Last week, the Commons voted in favor of the residence test by a
convincing margin of seventy votes. Members of the house who
oppose it will debate the order next week.

Following the high court's judgement that Grayling’s draft
legislation was inherently discriminatory, John Halford said:
"What we need to see now is the response of the government.
We would like to hope that the House of Lords will not endorse
this unlawfully drafted legislation."